Verizon's Throttling of Fire Fighters Could Go Unpunished Because the FCC Repealed the Open Internet Order

People are mad about the revelation that Verizon throttled the wireless service of the Santa Clara Fire Department in the middle of fighting a massive fire. In response, Verizon is making the very narrow claim that this wasn’t a clear violation of the 2015 Open Internet Order’s ban on throttling. That intentionally misses the point. The 2015 order, by reclassifying ISPs under Title II of the Federal Communications Act, would have likely made what happened with the fire department illegal.

Under the 2015 Open Internet Order, the Federal Communications Commission did two things. First, it established that all broadband Internet service providers were common carriers subject to the federal laws that protect consumers, promote competition, and guard user privacy. Second, it established a set of “net neutrality” rules based on its Title II authority through the bright line rules of “no blocking, no throttling, no paid prioritization” as well as a general conduct rule.

So when the FCC repealed that order, it not just ended a ban on blocking, throttling, and paid prioritization, it also declared federal laws that would be directly applicable to Verizon’s conduct to no longer apply.

Verizon Upselling Fire Fighters While the State Was Burning Would Likely Have Been an Unjust and Unreasonable Practice Under the 2015 FCC Order

All common carriers under the now repealed Open Internet Order were subject to legal obligations that required all of their practices to be just and reasonable, and that anything that was not just and reasonable would be illegal. Now the industry complains that this broad standard is difficult for them to know if they are in compliance, and they are right that the term “reasonable” is not an ironclad rule (this is why the FCC creates regulation, it provides clarity to their legal responsibilities). But I think we can all agree that trying to upsell firefighters after giving them the run around for four weeks right in the middle of fighting a fire is an unreasonable and unjust practice. In fact, trying to upsell anyone in an emergency—someone trying to check in on their families after a natural disaster and so on—instinctively feels like something companies should not be able to do.

And under the 2015 Open Internet Order, the FCC could investigate the issue, penalized Verizon for its conduct, and subsequently adopt a regulation stating ISPs cannot throttle public safety agencies during the time of emergency. Wireless providers have claimed during the net neutrality debate that they needed flexibility in order to address the needs of first responders when it was needed. In response, the order stated that the FCC found it fine for ISPs to prioritize first responders during an emergency, and it was after the repeal that Verizon did the opposite to firefighters.

The FCC is Now Prohibited From Looking into the Practice of Throttling 4G Markets Services Down to Dial-up Speeds Despite Clear Public Safety Implications

What Verizon leaves out in its defense of its throttling of public safety is that it is pretty clear throttling a service down from 50 Mbps down to effectively kilobit dial-up speeds in today’s world basically shutdowns wireless service. This is what they did to the Santa Clara fire department, for example.

Furthermore, it has nothing to do with managing congestion on the network because it is such a drastic drop in service. Congestion with wireless service, and the related throttling to address congestion, has been about dividing up the resource of wireless bandwidth amongst customers to ensure the network operated as efficiently as possible. That is not what is happening here. What we have here is a business model that separates various wireless data packages with a strong negative incentive if public safety didn’t switch from the lower tier plan to a plan that cost twice as much.

There Still Might be a Violation of the Net Neutrality Rules, But We Have No Agency to Investigate the Question

That was the point of the Restoring Internet Freedom Order. It was to strip away federal oversight over the ISP industry. Within the documents submitted by Santa Clara, it appears to be some confusion as to what exactly was Verizon selling to the fire department. Twice the public safety officials asserted they thought they were buying an unlimited plan and twice they discovered during the emergency they did not. It could be that Verizon was upfront on the plans being purchased and Santa Clara was mistaken, which if that is the case they will be fine under the net neutrality transparency rules.

While proponents of repealing net neutrality will argue the Federal Trade Commission (FTC) can manage this specific issue of transparency (they are right to a limited extent), they ignore the most critical differences between FTC power and the now-repealed FCC power. The FTC can only do something after the fact and nothing more. Meaning, in a literal sense, after the fire. And then if this came up again in another state, the FTC would have to wait until after the fire burned there. Notably, the FTC can’t ban throttling and upselling during an emergency.

The FCC, however, could have proactively addressed this problem in the future and establish a federal rule applicable in all fifty states that ISPs are not allowed to throttle public safety services during emergencies. The FCC under its Title II authority could even go so far and categorically say it is illegal to try to upsell public safety agencies, or anyone, wireless plans during official emergencies as a matter of public safety. The agency would have good arguments as to why to set these rules, and thanks to Verizon, the evidence to demonstrate that threats to health and life are at stake in the absence of such rules. But the Restoring Internet Freedom Order abandoned those powers, so right now in America, firefighters don’t have a government agency they can turn to for help.

Here is how we can change that. The House of Representatives can pass the Congressional Review Act to reverse the Restoring Internet Freedom Order. States can empower themselves by passing their own laws that exert oversight over ISP broadband practices. For example, California’s S.B. 822, headed for an Assembly vote in the next week, would provide that oversight power. And lastly, the FCC can abandon the biggest mistake in Internet policy history and reinstate its authority over broadband providers. Until then, public safety has no recourse when the next emergency comes.

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